Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Copyright Small Claims Proposals Address a Real Need

Photo source by Vaobullan

It’s far easier to disagree with strident antagonists of copyright than it is to disagree with collegial defenders of the law.  Attorney Leslie Burns has been a supporter of this blog since its earliest days, and I’ve always appreciated her readership and enthusiasm on social media; but I have to respectfully disagree with a recent blog of hers criticizing proposals to create a small claims system for copyright enforcement.  Calling the proposal a “Bad Solution to a Non-Problem,” I worry that her post may cause confusion among the very class of creators a small claim system would be designed to serve.

A Non-Problem?

As stated a few times, the works of visual artists are probably the most frequently infringed on the internet. It’s just too easy to grab images and share them on social media platforms relative to the general understanding of copyright law (see Khloe Kardashian’s mistake).  For many of copyright’s detractors, the scope of visual-works infringement alone is reason to just let copyright itself fade into oblivion as a concept.

For the authors of these visual works, however, it seems they have a mixed set of experiences and feelings regarding unlicensed uses of their images.  They end up having no choice but to let a lot of casual appropriations go but often want to draw lines where infringements are particularly egregious and/or when they are made by for-profit entities. For instance, the story about skateboard photographer Max Dubler having his work used for marketing purposes by a company (for which he only wanted $25) is typical of the kind of unenforceable infringement many independent creators face.

I believe it remains a rule of thumb that even a small-market attorney will tell you that a claim—in any area of law—that is under $10,000 is barely worth the cost of filing the first papers in a lawsuit. And since we’re talking about a class of creators whose median income for their creative work hovers around $30,000/year, it’s reasonable to assume that there are thousands of creators in the U.S. who could use a small claims process to enforce their copyrights.

A lot of photographers just like Dubler do not register their works with the USCO as standard practice because the time and cost to register perhaps hundreds of images exceeds their available resources.  Failure to timely register will usually void an author’s ability to engage in litigation for infringement, but the small claims proposal (as it stands) actually gives an author more flexibility by enabling him/her to register the allegedly infringed work with the USCO as part of the complaint process.  This removes a significant cost barrier to enforcement for a whole class of independent and start-up creators, which brings us to the matter of small claims as a solution.

A Bad Solution?

My friend (and I hope she stays my friend) Leslie Burns cites statistical evidence identifying the number of copyright litigations that do not come anywhere near going to trial but which instead settle for awards well below statutory damages.  She’s right, of course, that this happens all the time; in fact, most litigations in all manner of claims settle well before trial proceedings.  But it is incorrect to read this general narrative as having created a de-facto small claims copyright process as a byproduct of traditional litigation.  Clearly, the statistical outcomes in litigation do not represent the class of authors who cannot ever avail themselves of litigation in the first place—which is what small claims is all about.

Burns states that a small claims process will limit the rights and remedies currently available to copyright holders; and while this initially caught my attention,  I don’t see how it can be quite accurate.  If we look for instance at H.R. 6496, the proposal co-sponsored by Rep. Judy Chu (D-CA) and Rep. Lamar Smith (R-TX), the bill explicitly states that the small claims option is voluntary and that by electing to avail themselves of these proceedings, neither claimants nor respondents are precluded from pursuing traditional enforcement through litigation—even after a determination by the small claims Board.  The important highlight is that the small claim option is an additional remedy and not a replacement of any process currently available.

In essence, the small claim proposal (as per H.R. 6496) would create a new Board within the Copyright Office, comprising three experienced copyright attorneys and at least one of these with “substantial experience in the field of alternative dispute resolution.”  The Board would have the authority to adjudicate claims and defenses for which statutory damages for infringement of “timely registered works” may not exceed $15,000, or $7,500 for infringement of “works not timely registered.”  Based on my anecdotal experience, these numbers, which are fractions of the statutory damages in federal lawsuits, sound about right.

For instance, a typical letter to an infringer of a photograph will demand somewhere in the neighborhood of $1,500-$5,000 to settle without any legal proceedings. Hence, if a small rights holder can afford to back that up with an enforceable remedy ranging between $7,500 and $15,000, that should be sufficient to put some teeth in a non-procedural demand for settlement.   To Burns’s overall point, a lot of copyright claims are pretty straightforward; the infringer knows the unauthorized use is indefensible, and settlements are made rather than lose a costly litigation.  The small claims option does not remove any author’s ability to file federal litigation proceedings; it simply provides a viable alternative for rights holders, or specific cases, for which litigation is financial a non-starter.

As proposed in the Chu/Smith bill, the decision of the Board may be enforced by petition to the US District Court for the District of Columbia, which may prove to be more effective than typical small claims court.  I actually won a small claim years ago in New York City in a default judgment, then learned that in order to get the company to pay, I had to file a petition with the Sheriffs Department.  Guess how that worked out.

Restoring Faith in Copyright

Enforcement of the Board’s judgments is just one of a handful of questions yet to be addressed in a legislative process that began about a decade ago.  And while, we can all agree that the devil will lurk in the details, I believe the underlying principles of small claims for copyright are sound.  The thinking reflects an understanding of the digital age that could actually help restore some faith in copyright itself for thousands (or millions) of new creators still trying to understand where the opportunities and threats are in this dynamic market.  (This post about designers selling merchandise addresses this point.)

How many times have I argued that copyright is for everyone?  And it is. On the books anyway.  But in practical terms, this isn’t quite accurate.  Time and again, from individual creators and from copyright critics, we hear the theme repeated that copyright is unenforceable for all creators except big corporations and millionaires.  And apropos one point Burns is making, this over-used exaggeration does not paint an accurate reflection of enforcement; there is indeed a segment of creative professionals who can, and do, avail themselves of existing legal remedies.

But from my own observations, I suspect Burns may be overlooking the smaller indies and new entrants to this volatile market who could not remotely afford to walk into her office today.  Many of these creators are the same people who shrug at the whole subject of copyright because they are powerless in a world where infringement is so common. And exploiting that ambivalence is exactly what the big Silicon Valley corporations do very well.

Let’s Be Sure To Kill the Songwriters

I have said a few times on this blog that contemporary politics in the United States is increasingly reminiscent of the turbulent 19th century.  We only have 2.4 centuries of existence as a nation, and it took half of that time just to begin to fulfill the promise of equality—principally by advancing of the rights of labor relative to the power of capital.  Now, sadly, we seem to be moving in the opposite direction; and a new bill introduced in the House reveals that big capital—shiny digital-age capital—is not quite done eviscerating the rights of songwriters and musical artists.

As long as U.S. public policy is in a general state of chaos, we might as well write a bill that would allow corporations the size of Google and Amazon to steal from songwriters with impunity.  That’s not how Rep. Jim Sensenbrenner’s (R-WI) “Transparency in Music Licensing Ownership Act” is being presented by its proponents, of course, but that’s basically what it is.  And sources tell me there are murmurs within the Judiciary Committee about applying the same rationale (to use the word kindly) to all copyrightable works in addition to music.

A Bit of Context

As many readers know, songwriter David Lowery (of Cracker and Camper Van Beethoven) led a class-action suit against Spotify for publicly performing unlicensed songs.  The streaming company claimed it had made every effort to find the correct parties to pay license fees, but could not locate them.  Normal behavior would suggest that you don’t use the work until you get the license; but asking permission is just not the Silicon Valley way. Hence the lawsuit, which was settled this past May with Spotify creating a $43.4 million fund to compensate the publishers and songwriters whose works were used without license.

Then, as reported in detail by attorney Chris Castle, major music-streaming services—Google, Amazon, Pandora, and Spotify—have been exploiting a provision in the copyright act that was originally designed for single-use, good-faith actors, but which is now a giant loophole for predatory corporations with big computers.  Section 115 states that if the USCO record does not contain address information where a rights holder can be served, a prospective user of a work may instead file a Notice of Intent with the Copyright Office.

The big data companies have been abusing this provision by filing millions of NOIs against songs whose authors can very much be found, if one actually looks.  As Lowery notes in a recent post on The Trichordist, Google allegedly could not find Brian Wilson and so filed an NOI for an obscure ditty called “Surfer Girl.” Think of this NOI maneuver as a temporary liability shield for mass infringement—not an outright exemption so much as an elaborate stall tactic—a hack—that can only be achieved by companies with big computing power.  Meanwhile, creating an outright safe harbor for mass, corporate-scale infringement requires legislative action, and that’s where Rep. Sensenbrenner’s bill enters the story.

HR 3350 is Not What It Seems

On the surface, Sensenbrenner’s bill looks like a modernization initiative. Ostensibly, the proposal would amend the copyright act by mandating that a new database for musical works and sound recordings be created and maintained by the Register of Copyrights.  The bill is being sold as a means to more efficiently get artists paid by updating and fixing the public records.  And while nobody can claim the current, searchable database of the USCO is up to par, this is a) not the reason Google can’t find Brian Wilson; and b) not an issue that will be ameliorated by this half-baked legislation.  Most insidiously, this bill threatens rights holders’ ability to enforce their copyrights at all (more on that below).

Copyright Office modernization is a much-desired, highly-politicized, and underfunded goal that has been in the proverbial works for years.  As such, it seems hardly efficient to introduce legislation, which implies that there is now some urgency to create this database for two categories of works.  Suddenly, we need to develop a music database (which happens to be redundant to those maintained in the private sector) outside the context of any broader agreement about USCO modernization and the appropriations necessary to achieve that outcome.

This suggests that the urgency of Sensenbrenner’s bill is driven by the combined $1.5 trillion worth of corporate entities represented by a lobbying group called the MIC Coalition. Comprising the above-mentioned music streaming companies, terrestrial radio networks, consumer electronics companies, and hotel and retail giants, what these industries like about HR 3350 is that it directly weakens a rights holders’ ability to enforce his copyrights, period.

Preempting Liability

While many critics complain about statutory damages, they are fundamental to any rights holder’s ability to enforce a claim of copyright infringement.  Proving that an infringement has occurred is often quite straightforward, while proving exactly how much harm a specific infringement has done to the owner is far more subjective. For instance, some harm may be qualitative and hard to value in monetary terms.  Thus, the federally-mandated penalties for infringement act 1) as a deterrent; and 2) as an incentive to settle the majority of relatively simple cases in which attorneys for both parties typically know what the outcome of an otherwise costly trial would be.

Registration with the USCO is already required in order for a rights holder to be eligible for statutory damages in a prospective litigation.  But the provision in Sensenbrenner’s bill would mandate that rights holders register via this new database or forfeit their eligibility for statutory damages.  So, among the unanswered questions this bill begs is what it would cost rights holders to newly register and/or maintain their records in this as-yet-undeveloped database.  For instance, would an out-of-date phone number automatically nullify a rights holder’s eligibility for statutory damages in a litigation? And what would it cost a rights holder like a photographer, with thousands of copyrights, to change every record — depending on how the database is designed?

This NPR story by Andrew Flanagan calls HR 3350 “opaque” and quotes attorney Lisa Alter as saying, “It’s basically a prophylactic for copyright infringement.”  And that’s exactly what it looks like to rights advocates—a preemptive measure to evade liability for mass infringement of works, disguised as a modernization mandate. It even has the word transparency in its name to help with that confusion.

What About My Coffee House?

In a much older post, I referenced my local coffee house as a place that hosts an open mic night and, therefore, pays the three major PROs — ASCAP, BMI, & SESAC — and displays a sign at the entrance telling musicians to “play whatever they want.”  While the proprietor is focused on ordering supplies, managing his employees, brewing coffee, baking killer muffins, and catering to his customers, I imagine paying the annual PRO fees is about as much time as he will ever want to devote to thinking about music licensing.

As such, it’s hard to imagine how this small venue owner, and millions just like him, would benefit from this proposal despite the claims by mega-corporation proponents to the contrary.  At best, these databases are useful for prospective users of individual works, but the small proprietor of a bar, restaurant, or store has little to no use for that level of detail. He just wants music in his establishment.

While the language in this bill creates a brand new safe harbor shield for businesses like Pandora, Google, and Amazon—and perhaps even a major hotel chain—it’s likely to be somewhere between useless to harmful to my local coffee house owner.  Sensenbrenner is considered by industry professionals to be an enemy of the PROs, and it’s unclear the extent to which this bill could wind up harming those organizations. If this were to happen, though, that’s about as helpful to a small business owner as saying, “We got rid of the power company, so all you have to do now is buy every kilowatt from a different supplier.”

All Creators Should Reject this Bill

To quote Chris Castle, “It’s rare that the Congress can accomplish the hat trick of an interference with private contracts, an unconstitutional taking and an international trade treaty violation all in one bill.”  But he asserts that HR 3350 would achieve all three of these feats in a single act.  I proposed in a recent post that Napster gave us Donald Trump, which was just a provocative way of saying that I believe we accelerated the devaluation of labor and labor rights relative to capital when we presumed to reject the copyrights of musical artists and literally gave the artists’ money to tech VCs and criminal organizations.  Apparently, that narrative is still being written. Songwriters and musical artists are still the proverbial canaries in the coal mine; and it’s unclear if anyone will notice if they stop singing.

Academics Propose Tweaks to CDA Section 230

When EFF co-founder John Perry Barlow delivered his Declararion of the Independence of Cyberspace in Davos, Switzerland in February of 1996, it was in response to the Telecommunications Act, which had become law just a month earlier. In this speech that would become a manifesto for the industry’s libertarian nature, Barlow proclaimed the web as a place beyond the scope of legislation, a “home of mind” that would be self-governed by the only law people really need—the Golden Rule. Ironically enough, though, a part of the Telecommunications Act known as Section 230 of the Communications Decency Act, is at least one cyber law that the EFF and similar organizations believe is sacrosanct—even to the extent that it should protect those who break the Golden Rule in some very ugly ways.

Section 230 of the Communications Decency Act was designed to support good samaritans, but those who defend its status quo today are often blind to the reality that it provides cover for many bad samaritans, which is the term used in the title of a new paper called The Internet Will Not Break:  Denying Bad Samaritans Section 230 Immunity.  It’s authors, law professor Danielle Keats Citron at the University of Maryland and Benjamin Wittes of the Brookings Institute, focus primarily on influence of the courts, which have consistently applied the Section 230 liability shield so broadly as to distort—if not invert—the original intent of the statute.

The paper begins with a description of the social media site Omegle, whose slogan “Talk to Strangers!” is the antithesis of that rule (right after the Golden one) that our parents used to preach.  As Citron and Wittes put it, “Omegle is not exactly a social media site for sexual predators, but it’s fair to say that a social network designed for the particular benefit of the predator community would look a lot like it.”  The point the authors are making is that the site’s own disclaimers acknowledge their awareness that predators use the platform, which in any non-web context, would be an admission of potential liability for harm that may come to children. But thanks to Section 230 of the CDA, the site can basically say, “Swim in our pond at your own risk. Pirhannas happen.”

As the paper describes, CDA 230 was a Congressional response to the 1995 case Stratton Oakmont v. Prodigy, in which the service provider’s voluntary, good-faith efforts to weed out noxious content from its platform provided the legal basis for the plaintiff to hold Prodigy liable for defamation committed by a third-party user of its services. In other words, the mere fact that Prodigy exercised any control over content meant that it could be held liable for user actions that it could not reasonably have been expected to mitigate. The case cost Prodigy $200 million in damages, signalling reasonable fears among early investors in the internet that they could be the targets of civil or criminal liability suits stemming from the actions of their users.

In response to the Prodigy case—and especially because Congress wanted to encourage ISPs to remove “indecent” (i.e. pornographic) material from their sites—Section 230 was written to provide that actions taken by site managers to remove illegal or unsavory material would not, in a legal sense, make their companies “publishers” vis-a-vis potential liabilities stemming from third-party actions.  “Lawmakers thought they were devising a limited safe harbor from liability for online providers engaged in self-regulation. Because regulators could not keep up with the volume of noxious material online, the participation of private actors was essential,” write Citron and Wittes.

That was 1996.  Today, as many parties have observed, and the authors of this paper further explain, Section 230 paradoxically insulates content and behaviors that can be more toxic than anything it was originally intended to reduce.  “…its overbroad interpretation [by the courts] has left victims of online abuse with no leverage against sites whose business model is abuse,” write the authors. While the internet industry, along with “digital rights” organizations, argue the absolute necessity to maintain the status quo of Section 230, Citron and Wittes counter that the liability shield too easily immunizes bad actors who knowingly allow, or intentionally invite, harmful conduct ranging from harassment and defamation to child sex-trafficking and terrorist propaganda. From the paper …

“A physical magazine devoted to publishing user-submitted malicious gossip about non-public figures would face a blizzard of lawsuits as false and privacy-invading materials harmed people’s lives. And a company that knowingly allowed designated foreign terrorist groups to use their physical services would face all sorts of lawsuits from victims of terrorist attacks. Something is out of whack—and requires rethinking—when such activities are categorically immunized from liability merely because they happen online.” 

The authors emphasize one of my personal gripes whenever any kind proposed enforcement is claimed to be a threat to Free Speech, which is that defenders of Section 230 often overlook the myriad ways in which bad actors stifle the speech of their victims.  For instance, the paper cites the website Dirty.com, which essentially trades in privacy-invading gossip about non-public figures; and if this enterprise were published on paper rather than online, it would have easily been sued out of existence by now.  But thanks to Section 230, “Posts have led to a torrent of abuse, with commenters accusing the subjects of ‘dirt’ of having sexually transmitted infections, psychiatric disorders, and financial problems.  [The Site Owner] has admittedly ‘ruined people sometimes out of fun.’ That admission is not against interest—he knows well that he cannot be sued for his role in the abuse because what users do is on them,” write Citron and Wittes.

In reference to the EFF, the paper quotes the organization as acknowledging that cyber-harassment and related activity does stifle the speech of users; but the authors also highlight the organization as one which treats Section 230 as “an untouchable protection of near constitutional status.”  As reported in this post, the EFF and related groups are so committed to defending the status quo of Section 230 that they have defended its application in the the Backpage case, despite compelling evidence alleging that the site operators knowingly facilitated sex-traffcking of minors.

Something is clearly wrong when a law originally intended to protect children from mere exposure to sexually explicit material may be applied to protect criminals who facilitate the trafficking of children as prostitutes — simply because that facilitation happens online. It is possible that the Backpage case will wind up at the Supreme Court and that the egregious nature of the harm—child sex-trafficking—will be severe enough to recallibrate a judicial reading of the statute’s meaning and intent.  Citron and Wittes view substantial reform from the bench  as a long shot and, therefore, recommend that the courts at least limit the scope of Section 230 defenses to claims related solely to the publication of user generated content.  By contrast, the authors describe the expanding application of the statute thus:

“Many legal theories advanced under the law do not turn on whether a defendant is a “publisher” or “speaker.” Liability for aiding and abetting others’ wrongful acts does not depend on the manner in which aid was provided. Designing a site to enable defamation or sex trafficking could result in liability in the absence of a finding that a site was being sued for publishing or speaking.”

Perhaps more realistically, the authors suggest that some statutory amendment is the only viable solution, and they contend that this can be achieved with a modicum of alteration, leaving intact the liability shield as it was intended for site operators acting in good faith.  For instance, they suggest …

“Mirroring section 230’s current exemption of federal law and intellectual property, the amendment could state, ‘Nothing in section 230 shall be construed to limit or expand the application of civil or criminal liability for any website or other content host that purposefully encourages cyber stalking, nonconsensual pornography, sex trafficking, child sexual exploitation, or that principally hosts such material.’”

In essence, Citron and Wittes argue, this would allow the Twitters and Facebooks of the world to make good-faith efforts to weed out harmful or illegal content and remain protected by Section 230, while immunity would no longer apply to site owners who purposely profit from harmful conduct.  The authors remind readers that this change simply removes the atuomatic immunity (i.e. the opportunity for bad samaritans to file motions to dismiss under Section 230) but in no way alters their rights as defendants in a potential litigation.

On the subject of free speech, the authors reject (as I have many times) the premise that just because nearly all internet activity takes the form of communication, this does inherently place service providers in a unique category universally protected by the First Amendment.

“… to the extent that our proposal is resisted on the grounds that online platforms deserve special protection from liability because they operate as zones of public discourse, we offer the modest rejoinder that while the internet is special, it is not so fundamentally special that all normal legal rules should not apply to it. Yes, online platforms facilitate expression, along with other key life opportunities, but no more and no less so than do workplaces, schools, and coffee shops, which are all also zones of conversations and are not categorically exempted from legal responsibility for operating safely.”

Amen.